Durante v. Braun

Finan, J., delivered the opinion of the Court. The appellant, Carl J. Durante, opposes the granting of a motion for a directed verdict by the Circuit Court for Harford County (Close, J.) in an action for malicious prosecution brought by him against the appellees, Mr. and Mrs. John Braun, Mr. and Mrs. John Tanner and Mr. and Mrs. Carroll Jessnitzer. The parties to this appeal are immediate neighbors living in the Harford County community of Fallston. In 1967 and 1968, primarily on weekends, the appellees began to hear and complain of loud explosions in their neighborhood which they alleged originated from the Durante premises.

The neighbors reported having seen puffs of smoke rising from the Durante property after explosions and suspected that Mr. Durante was setting off “cherryNbpmbs” on the premises. On two occasions after such disturbances, Mr. Tanner complained to the police and requested that investigations be made on the Durante property. At one point the appellees’ attorney wrote a letter to the Durantes in which he complained of various problems including the firing of “cherry bombs” and in which he stated that the appellees were willing to resort to court proceedings to quell future disturbances. The troubles among the neighbors culminated on October 12, 1968, with the filing of a complaint against Mr. Durante for willfully disturbing the public peace.

Ac ⁶⁸⁷ cording to the testimony taken in the lower court in the malicious prosecution proceeding, on the morning of October 12, 1968, between 9:00 a.m. and 9:10 a.m. the appellees once again heard an explosion. Mr. Braun testified that after hearing the explosion, he rushed to his window where he saw Mr. Durante silhouetted against a mushroom of smoke. Mrs. Braun confirmed her husband’s testimony, and Mrs. Jessnitzer also testified that she had seen thick white smoke above the appellant’s property immediately after she heard the explosion. Mrs. Tanner recalled seeing Mr. Durante immediately following the explosion.

A conference among the appellees then ensued at which they decided to file the complaint against Durante. Mr. Braun and Mr. Tanner appeared on the day of the explosion before a Committing Magistrate for Harford County and cited the morning’s commotion as evidence of the crime. After a hearing in the People’s Court of Harford County on October 24, 1968, Mr. Durante was found not guilty of the charges placed against him, and on February 10,1969, he instituted proceedings for malicious prosecution against the appellees in the Circuit Court for Harford County. At a jury trial, the Durantes contradicted the appellees’ testimony by alleging that they left their home in Fallston at approximately 7:30 a.m. on the morning of October 12, 1968, to attend a gun show being held outside of Wilmington, Delaware.

Mr. Durante further testified that he and his wife arrived at the gun show at approximately 8:30 a.m. and that they remained there until early the next morning. The appellant’s testimony was supported by Rev. Edward E. Coleman who testified that he saw and talked to Durante in Wilmington prior to 9:00 a.m. on October 12, 1968. Several other witnesses also testified that they saw the Durantes at the gun show prior to 9:00 a.m. The appellant additionally brought forth testimony to show that on numerous occasions the sound of explosions from Aberdeen Proving Grounds, Edgewood Arsenal and sportsmen’s rifles and shotguns could be heard in his neighborhood. ⁶⁸⁸ At the conclusion of testimony in the Circuit Court proceeding, the appellees made a motion for a directed verdict which was granted by Judge Close on the finding that as a matter of law there was sufficient probable cause for the prosecution of Durante by the appellees.

In North Point Construction Co. v. Sagner, 185 Md. 200, 206 , 44 A. 2d 441 (1945), our predecessors noted that “Suits for malicious prosecution are viewed with disfavor in law and are to be carefully guarded against [citations omitted].” Such an admonition, however, is not to be construed as meaning that the cause of action is no longer viable. In Safeway Stores v. Barrack, 210 Md. 168, 173 , 122 A. 2d 457 (1956), Judge Henderson, later C. J., writing for the Court re-stated the elements necessary for the successful maintenance of an action for malicious prosecution: “* * * There must be (a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in favor of the accused, (c) absence of probable cause for the proceeding, and (d) ‘malice,’ or a primary purpose of instituting the proceeding other than that of bringing an offender to justice. Prosser, Torts, (2d ed.), p. 646; Restatement, Torts, § 653; Pessagno v. Keys, supra; Delk v. Killen, 201 Md. 381, 383 . * * *” 210 Md. at 173 . See also Jannenga v. Libernini, 222 Md. 469, 472 , 160 A. 2d 795 (1960).

In the case at bar, since there was a proceeding instigated against Durante and the proceeding terminated in his favor, the remaining question is, does the record show that Durante presented legally sufficient evidence of lack of probable cause and the existence of malice on the part of the defendants as warranted the submission of the case to the jury. In deciding this question we must keep in mind that although sound